Today EFA's hosting provider received a Final Link Deletion Notice from ACMA, requiring us to remove a link to a page that contains images of aborted foetuses from our website. We have complied with this notice because it exposes our host to fines of up to $11,000 per day that we do not remove the link.

This post examines some of the free speech arguments and technicalities of potential appeals processes. Expect long-winded legal analysis beyond the jump.

The ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the Classification Board's site, classification Number 56671019. The description of the content we received was that it contained "gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact."

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to, hosted at AbortionTV.com, was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation's messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the AbortionTV page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government's plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia's current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is 'illegal' material, and that the proposed filter will not block any political speech. The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

What does this mean?

We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the takedown scheme "does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication."

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that laws that "effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect" must be "reasonably appropriate and adapted to serve a legitimate end", the fulfillment of which is compatible with the constitution.

It is apparent that Schedule 7 of the BSA "effectively burden[s] freedom of communication about governmental or political matters", as demonstrated by this takedown notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is 'reasonably appropriate and adapted' to that purpose is not clear. In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the takedown notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the "links service provider" within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it "may only be made by the links service provider concerned" (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia's current and proposed censorship regimes.

15 comments

The images on the website are what got it the 18+ rating, not the political content.

A website that can emote the same message with words, rather than with shock pictures, won't have the same rating. Articulation is a lost art.

Can I argue against cruelty to animals by posting shock images of cats being tortured, dismembered, on fire? No.
(And as the argument will go there) Can I argue against child "abuses" by posting shock images of the "abuses"? No.

Comment by Bob Bobington on 6 May 2009 at 06:26

@ Bob: While it may certainly be possible to argue against animal cruelty without depicting the situations that the animals are subject to, you will certainly lose some of the force of the argument, at least in some cases.

I think that this is a slightly different issue though: it's very difficult to make a political statement like "I think this classification is wrong, that Australians should legitimately be allowed to look at this material, and that filtering this material is over-broad" without showing the material itself. I can explain to you that the images are graphic images of dismembered foetuses and that I think they are political speech, but my message loses a lot of its content if I am not able to show you.

Comment by Nic on 6 May 2009 at 06:38

I agree with Bob. Nic - your argument is flawed by simple reference to the classification legislation and the classification guidelines, none of which classify material on the basis of its political persuasion.

Bob is right - another eg would be a poltical party for sex which has photos/videos of sex on its website demonstrating the politcal message of the party. That would be rated X and considered political speech using your simplistic analysis. Are you saying that the only effective way for such a political party to express its views is to freely openly distribute these photos/videos?

Would you apply the same argument for poltical parties that support sex with animals? what about politcal parties that support capital punishment - should they be able to have videos of hangings/beheadings/lynchings/stonings simply because they support that politically? Nic - I think your argument is a touch opportunistic and short-sighted.

Comment by Susan on 6 May 2009 at 07:55

@Susan I draw a distinction here between promoting the content of the material and using the material as an example of overblocking. By posting a link to AbortionTV, I am certainly not arguing for the criminalisation of abortion. I am, however, making an argument that (a) I believe the initial classification was incorrect (over-broad); and (b) consequently the current and proposed classification schemes interfere with legitimate free expression.

While I can describe this argument, particularly point (b) benefits greatly from some supporting evidence. The pictures are graphic, but they are certainly not of a nature that I would want silently blocked from all Australian internet users, with no avenue of review. I could tell you that, but my message suffers from not being able to show you.

Comment by Nic on 6 May 2009 at 18:45

So linking to this content attracts big fines, how about a url in plain text that's not hyperlinked, or a trimurl to the page? Are links to links to pages bad? How bout a trimurl to an is.gd to the site?

Comment by moses on 6 May 2009 at 09:29

Why don't you just move your servers outside of Australia? That would solve the problem. If the server is not in Australia, then it is not subject to Australian law.

Comment by Jimmy Ribbitt on 6 May 2009 at 13:49

Forget the AAT - that is important if you are looking for a new decision on the merits. Here your issue is that the decision is unlawful, either because it is in excess of power or because the statute supporting it is unconstitutional. This is quite clearly a matter that would fall within the constitutional writ of certiorari. As the publisher, EFA's interest in this is clearly substantial rather than theoretical, so it has standing. This is an application you could bring in the High Court directly.

Comment by Anonymous on 6 May 2009 at 19:48

Nic, it is interesting to note that the take-down notice issued to EFA's host classifies the images as R18+. When the same link was published by whirlpool.net.au the ACMA claimed that the images were likely to be RC ("refused classification"). this distinction is important for two reasons:

1. ACMA itself cannot be relied upon to make an appropriate analysis of the content, and
2. The fact that the material is R18+ creates a possibility for a solution that allows you to maintain your link to the images AND not attract an ACMA take-down notice.

I am referring in point 2 above to a "Restricted Access System". The ACMA Restricted Access System Declaration 2007 specifies the minimum requirements for a RAS for R18+. Content that is R18+ AND is subject to a RAS will not be classed as "Prohibited Content" and therefore subject to the take-down provisions of Schedule 7 of the Broadcasting Services Act (see clause 20 of Schedule 7). Basically, a RAS is one which acts as a barrier to the general public viewing MA15+ or R18+ content unless they have first declared that they are of appropriate age.

Whilst it is a less than ideal situation, it does to some extent undermine your "free speech" argument.

Comment by Piquet on 6 May 2009 at 23:04

Another thing to consider is the website in question could easily be unblocked.

"Under the Broadcasting Services Act 1992, the following categories of online content are prohibited: "
- "Content which is classified R 18+* and not subject to a restricted access system that prevents access by children. This includes depictions of simulated sexual activity, material containing strong, realistic violence and other material dealing with intense adult themes."

"New rules for restricting access to age restricted content (commercial MA15+ content and R18+ content) either hosted in Australia or provided from Australia will commence from 20 January 2008."

I am not a layer. But the answer, to me at least, seems clear. You can link to a R18+ website if your hyperlink is protected with an age verification system.

Now who wants to test that theory?

...
Piquet,

I assume that once a complaint against a website is made, the ACMA makes its best on the spot assumption. Then the OFLC has a look and assigns a rating which could overturn the ACMA decision.

I haven't looked into this side of the process in any detail.

Comment by Bob Bobington on 7 May 2009 at 00:00

@ Bob

1. On the issue of using images to make an argument - this actually happens all the time. Take for example the various campaigns against bear bile farming, or fund raising for famine relief, anti-war imagery frequently makes use of the brutality of war etc etc.

We should also wonder why an image is more disturbing than text. What is it about an image that makes it more dangerous than the written word?

2. The classification system will also attempt to classify anything relating to assisted suicide, including a satirical list of methods of committing suicide (such as attempting re-entry from orbit outside of a spacecraft). I can't imagine what this can be considered if not political content.

Comment by Kristian on 7 May 2009 at 07:20

@Piquet, @Bob: There are two problems in relation to making a link to R 18+ content (like the AbortionTV website) subject to a ‘restricted access system’.

First, a restricted access system in relation to R 18+ content must require users to prove that they’re over 18. That is, it must require users to provide evidence, and not just a declaration, that they’re over 18. (That evidence has to be stored for two years, and that storage must comply with privacy laws.) In other words, your users would have to provide valid credit card numbers or copies of their birth certificates or other information that they wouldn’t be willing to provide.

Second, even if you made the link subject to such a system, that would not technically be effective. ACMA must issue a link-deletion notice if there is a link to prohibited content hosted in Australia. R 18+ content that’s not subject to a restricted access system is prohibited content. If you have a link, whether or not it’s subject to a restricted access system, to R 18+ content that is itself not subject to a restricted access system, you have a link to prohibited content.

It’s irrelevant whether the link itself is subject to a restricted access system. In other words, the test for issuing a link-deletion notice is not whether you have a link that’s not subject to a restricted access system to R 18+ content. It’s whether you have a link to R 18+ content that’s not subject to a restricted access system.

The ACMA action has drawn far more attention to the objectionable site then it ever would have received had they just ignored it. In terms of censorship, this exercise has been a miserable taxpayer-funded failure.

Link censorship is futile and will simply lead people to host websites offshore where the ACMA can't touch them.

Comment by Simon on 22 May 2009 at 06:27

I wonder if you got yourself another domain hosted outside of Australia (just make a geocities account), and posted your link to there, which then linked to the prohibited website.
Would this be an effective loophole, or would that still count as you linking to prohibited content?

Comment by Rick on 24 May 2009 at 08:45

You don't have the right not to be offended if you want to live in a free society.

Keep fighting the good fight Nic.

Comment by Gerry on 25 June 2009 at 23:51

I do not like “Link Deletion”.

If any link contains any untrue and incorrect materials or certain information which may incite violence, hate, prejudice and bigotry should be vigorously argued, exposed and defeated publicly. Therefore deleting any link is not a good idea.